posted at 5:39 pm on November 8, 2011 by Allahpundit

Not just any Reagan appointee, either. It’s Laurence Silberman, a guy I’ve described before quite rightly as a “conservative judicial icon.” (Frum Forum has a quickie bio.) Four years ago, he wrote the landmark D.C. Circuit opinion striking down Washington’s gun ban as a violation of the Second Amendment; a year later, the Supremes affirmed his decision. And now … this.

Dude, I’m nervous.

“It certainly is an encroachment on individual liberty, but it is no more so than a command that restaurants or hotels are obliged to serve all customers regardless of race … or that a farmer cannot grow enough wheat to support his own family,” wrote Judge Laurence Silberman in the majority opinion, citing past federal mandates that inspired legal fights.

“The right to be free from federal regulation is not absolute, and yields to the imperative that Congress be free to forge national solutions to national problems, no matter how local — or seemingly passive — their individual origins.”…

In the latest case, Judge Brett Kavanaugh broke with the other two justices on the panel and said the court did not have jurisdiction to decide the case.

Says, the Journal, correctly, “The D.C. Circuit’s rulings traditionally get particularly close attention from the Supreme Court, in part because four of the justices—including Chief Justice John Roberts—previously sat in that circuit.” The killer aspect of Silberman’s opinion isn’t merely that he voted the wrong way, it’s that it’s an (almost) unqualified endorsement of the most expansive possible reading of the Commerce Clause. Which, in fairness, is in line with Supreme Court precedent. A choice quote from Time, which notes that Silberman was overheard scoffing at the anti-ObamaCare position even during oral arguments:

“The mandate, it should be recognized, is indeed somewhat novel, but so too, for all its elegance, is appellants’ argument,” he wrote. “No Supreme Court case has ever held or implied that Congress’s Commerce Clause authority is limited to individuals who are presently engaging in an activity involving, or substantially affecting, interstate commerce.”

As for the appellant’s argument that penalizing inactivity — not carrying insurance as opposed to, say, actively breaking the speed limit– was similarly out of bounds, he was every bit as firm. “To be sure, a number of the Supreme Court’s Commerce Clause cases have used the word ‘activity’ to describe behavior that was either regarded as within or without Congress’s authority,” Silberman argued. “But those cases did not purport to limit Congress to reach only existing activities. They were merely identifying the relevant conduct in a descriptive way, because the facts of those cases did not raise the question–presented here–of whether ‘inactivity’ can also be regulated.”

Silberman ceded that the ACA’s mandate marks an unprecedented new federal power and professed a “discomfort with the Government’s failure to advance any clear doctrinal principles limiting congressional mandates.” But he also argued that Congress was in its right to seek a novel solution to a novel problem. “The health insurance market is a rather unique one, both because virtually everyone will enter or affect it, and because the uninsured inflict a disproportionate harm on the rest of the market as a result of their later consumption of health care services,” he wrote. “Moreover, the novelty cuts another way. We are obliged–-and this might well be our most important consideration–-to presume that acts of Congress are constitutional…. Appellants have not made a clear showing to the contrary.”

So there you go: Congress is now free to regulate commercial activity even when there isn’t any activity. That’s the same logic that the Michigan district court used last year when it upheld the mandate, and it poses the same problem identified at the time: What limit, if any, still exists on the Commerce Clause? To borrow George Will’s hypothetical, what part of the Constitution is left to prevent Congress from ordering overweight people to join Weight Watchers? The costs of treating them for weight-related issues are also part of our “novel” insurance problem, so in theory that’s regulable too. There’s no stopping point here.

Here’s the decision. The section on the mandate begins on page 28.DC Aca Opinion

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“The mandate, it should be recognized, is indeed somewhat novel, but so too, for all its elegance, is appellants’ argument,” he wrote.

“No Supreme Court case has ever held or implied that Congress’s Commerce Clause authority is limited to individuals who are presently engaging in an activity involving, or substantially affecting, interstate commerce.”

So that’s the controlling concern for ruling on “novel” inventions of governmental powers – whether or not the Supreme Court has ever explicitly said that the government can’t do it.

Hell, forget the obvious absurdity of Commerce Clause jurisprudence being the justification for our mammoth regulatory state, which any “conservative jurist” should regard as a necessary evil of stare decisis to be circumvented as much as lawyerly possible. This “conservative judicial icon” is saying that Congress can do anything that the Supreme Court has not previously forbidden them from doing directly!

Told ya it wouldn’t be close. Obama will win 7-2. The Supremes are, after all, the most powerful of government employees, so they like them some guvment power. It’ll be up to Congress to discard this monstrosity. Think they’ll have the guts? Nah. And every election ever after will be all about national health care, left and lefter, hello Great Britain, goodbye America. Give granny an extra hug this holiday season; if she gets sick, she’ll be gettin’ the government hot shot, and there won’t be a damn thing you can do about it. Granny costs too much. And your really, really, really sick baby? Yeah, also costs too much, and “Congress (must) be free to forge national solutions to national problems.” You can make another baby. Quit whinin’.

Today the D.C. Circuit ruled that the individual mandate is a constitutional exercise of federal power under the Commerce Clause. Senior Judge Laurence Silberman (Reagan appointee) wrote the opinion, which was joined by Senior Judge Harry Edwards (Carter appointee). Judge Brett Kavanaugh (George W. Bush appointee) dissented on jurisdictional grounds without reaching the merits, finding that the Anti-Injunction Act barred the suit until the individual mandate/penalty/tax goes into effect. (The case is Seven-Sky v. Holder; see Cato’s amicus brief and a quick breakdown by Tim Sandefur.)

Sure, this is a loss for our side but it’s not a big deal. Every development in the Obamacare litigation has been anticlimactic since the Eleventh Circuit split with the Sixth, guaranteeing that the Supreme Court would take the case. Today’s ruling, therefore, is notable not so much for its result — upholding the individual mandate — as for the reluctance with which it reached it.

After acknowledging the novelty of the power Congress is asserting, the court expressed concern at “the Government’s failure to advance any clear doctrinal principles limiting congressional mandates that any American purchase any product or service in interstate commerce.” In other words, the majority saw itself bound by the Supreme Court’s broad reading of federal power under the Commerce Clause but felt “discomfort” at reaching a result that seemingly had no bounds.

Indeed, the government has yet to tell any court in any of the cases what it cannot do under the guise of regulating interstate commerce. But rest assured that the Supreme Court will ask again, and soon — it considers the myriad cert petitions later this week. And if the high court is as unsatisfied with the government’s jurisprudential non-theory as the D.C. Circuit was, it will not hesitate to strike down this expansion of federal power.

“Federalism is more than an exercise in setting the boundary between different institutions of government for their own integrity,” wrote Justice Kennedy for a unanimous Court last term (United States v. Bond). “Federalism secures the freedom of the individual.”

I am confident that the Supreme Court will not allow this unprecedented invasion of individual liberty.

“It certainly is an encroachment on individual liberty, but it is no more so than a command that restaurants or hotels are obliged to serve all customers regardless of race … or that a farmer cannot grow enough wheat to support his own family,” wrote Judge Laurence Silberman in the majority opinion, citing past federal mandates that inspired legal fights.

the reality is that he is correct – if you follow precedent, the mandate is not unconstitutional. The only way SCOTUS overturns Obamacare is if they craft a decision that narrows past precedence as to commerce clause jurisprudence. When you have a case out there from the supreme court holding that growing tomatoes in your own back yard for your own consumption affects interstate commerce giving congress the right to regulate it – then really, what is not within congress’ power to regulate?

to me, the precedent itself is unconstitutional. If the precedent is constitutional, it essentially means that the commerce clause subsumes the rest of the constitution making it all meaningless. the powers reserved to the states are illusory as everything – even drawing breath or procreating, affects interstate commerce to some degree. After all, every action has a reaction. Well – if I go on a diet I am affecting interstate commerce as I am purchasing less food. If I forgo having kids I am affecting interstate commerce by not supplying future consumers.

The chances of Kennedy doing something as bold as narrowing the scope of 100 years of commerce clause precedent are pretty slim. And, the chances of the GOP actually repealing this boondoggle are just as slim.

The analogy that this is akin to a restaurant having to serve all customers regardless of race makes no sense. If I didn’t like it I just wouldn’t go there. The analogy is if they forced you to eat there.

Does it appear to you now that the GOP doesn’t want Obamacare to be repealed? That probably they are pulling levers so that this “conservative icon” set a worse ruling? Don’t you think it’s odd that the party is doing everything it can to make Romney the nominee the one candidate who can’t run against Obamacare? What does it say about the GOP? It’s in love with the Obamacare. Individual manadate was supported by many conservatives during the conservatives during Hillarycare debate. That is the real concern, not this ruling.

“It certainly is an encroachment on individual liberty, but it is no more so than a command that restaurants or hotels are obliged to serve all customers regardless of race … or that a farmer cannot grow enough wheat to support his own family,” wrote Judge Laurence Silberman in the majority opinion, citing past federal mandates that inspired legal fights.

Remember, Allahpundit-san, crisis represents two signs of the I Ching… Danger, and Opportunity.

If in fact it is less of an infringement on liberty than tohose things mentioned, and the SCOTUS finds that it goes too far…

… it would give the Court, manned by the right judges, the ability to strike down large chunks of the uber-state on the basis of redrawing the authority of the Commerce Clause.

And in a delicious twist of irony, should it play out that way, it will have been brought to you, courtesy of Barrack Hussein Obama.

To a certain point, it almost doesn’t even matter to me anymore if the mandate is upheld. I mean, on it’s face, that’s a blatantly untrue statement. But what I mean is, I don’t need the Supreme Court, or any lower court, to tell me the mandate is unconstitutional. It obviously is. I have no intention of ever complying with the mandate, nor do I consider myself to have any moral duty to do so.

I obey laws, I pay my taxes, even when I think they are stupid. Other laws, such as state requirements to purchase auto insurance, are bad law–but constitutional, and I obey those laws. This law, with this mandate, however? Different story. My conscience is clear on this. I’ll never comply. This strikes at the core of what it is to be American, and if in fact this law is constitutional, then we have irretrievably lost what it means to be American.

Not to be one of those repeal the 17th amendment kooks (although I am), but the commerce clause jurisprudence is exactly why that amendment needs to be repealed. The whole point of having the senate advise and consent on judicial nominees was to require representatives of the states to give the OK on judicial nominees before they went on. So now we have the President and 100 other guys who equally benefit from the expansion of federal authority picking judges, anyone shocked they read the commerce clause as they do?

“No Supreme Court case has ever held or implied that Congress’s Commerce Clause authority is limited to individuals who are presently engaging in an activity involving, or substantially affecting, interstate commerce.”

So what? Does that mean the commerce clause confers unlimited powers on the federal government? To hell with original intent, I guess. Based on this logic, there is no individual activity or non-activity that can’t be said to affect interstate commerce and the very idea of individual liberty is rendered meaningless.

He is absolutely right that there is nothing inheriently significant about the activity — inactivity dichotomy. However, it was the BS rule set up by SCOTUS when they were creating the imaginary expansive powers under the Commerce Clause. It was an imaginary limitation on imaginary powers. I guess the power is now real, but the limitations are still imaginary.

When they used interstate commerce to argue constitutional authority for mary jane prohibition, I didn’t speak up because I wasn’t really adhering to conservative principles. But now when it counts, oops.

OF course, the HOTAIR amnesty support group clings to the idea that Reagan’s amnesty was a conservative win and the right thing to do, so much so that we should repeat it with a number 7 times as large today.

Let’s see them apply the same standard to this ruling, and applaud Silberman, and call down blessings from St Ronaldus upon him.

This is RIDICULOUS !!! One of the reasons the judges gave, that I just read in Drudge, was that the mandate is fine because it is not different than requiring stores to accept all customers regardless of race. Aside from the many issues with that statement is the one that tips the whole decision on it’s head: it’s APPLES AND ORANGES!!! WE ARE NOT THE STORE OWNERS, WE ARE THE CLIENTS!!!! WE HAVE THE FREEDOM TO CHOOSE TO ENTER A STORE OR NOT!!!

THis has been one of the worst thought out decisions that have come out of this whole ordeal.

“We are obliged–-and this might well be our most important consideration–-to presume that acts of Congress are constitutional…. Appellants have not made a clear showing to the contrary.”

This joke must not have hears of the enumerated powers or the Bill of Rights. In a real America if they were to presume one way or the other they would presume that the Federal Government should have less power.

This appeals court just followed precedent, as it should. Case law, especially turning over years of precedent, should be left to SCOTUS.

Frankly, SCOTUS will have to find a new limit to the commerce clause. There have been other examples, such as the Lopez case, but this is all new ground. Either they say the individual mandate follows past precedents and uphold it, or they say that this treads new and dangerous ground and overturn it.

“It certainly is an encroachment on individual liberty, but it is no more so than a command that restaurants or hotels are obliged to serve all customers regardless of race … or that a farmer cannot grow enough wheat to support his own family,”

So, it is completely unconstitutional, but, because other Supreme Courts have let other completely unconstitutional laws pass, we have to let this one go too?